Specific performance, as opposed to damages, is an attractive but exceptional remedy when a unique thing has been sold and the other party refuses to honor his or her end of the bargain. For example, a case where a party refuses to perform his or her part of a contract involving real property or a work of art may be candidates for specific performance.

"Specific performance implies an order compelling a party to perform some act or do some thing that is required under the contract."

The common law provided only damages and thus, historically, equity stepped in and provided the remedy of specific performance in some cases (usually, where the subject matter of the contract was unique).1

n re Korn, Justice Myers, at footnote 29, wrote:

"Specific performance is an equitable remedy available when legal remedies (monetary damages) are inappropriate or inadequate. Inadequacy of remedies at law is presumed in an action for breach of a real estate purchase and sale agreement due to the perceived uniqueness of land. The decision to grant specific performance is within the court's discretion."

Specific performance is not an attractive remedy for the Court in the event of a service contract as the defendant has already shown that he/she is disinclined to perform and for services, the relationship between the parties might not be conducive to that, as the defendant has already shown that he won’t perform and the parties have engaged in adversarial judicial proceedings.

Generally, the Courts prefer the remedy of damages, so that their judgment is "plaintiff friendly", easier to enforce. This also gives the Court the flexibility in terms of an amount of damages.

But in some cases, especially when the object of the contract is unique, readily ascertainable or is an identifiable one-of-a-kind item (such as a piece of real property), the Court will order specific performance.

For example, Justice Foti of the Appellate Court of Connecticut, in Hill v Ratone, wrote:

"Specific performance is an equitable remedy permitting courts to compel the performance of contracts for the sale of real property, and certain other contracts, pursuant to the principles of equity."

For example, if a defendant has breached a contract in which he agreed to deliver a Picasso painting to the plaintiff, the Court might in that case order specific performance; that the defendant deliver forthwith to the plaintiff said painting.

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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.